Friday, April 25, 2014

Our water law was certainly in the
news this week. The decade-old lawsuit pitting Native Hawaiians and environmentalists
against corporate institutions that have been part of Maui since the nineteenth
century is over.

Na Wai Eha means “the four waters”
of Waikapu Stream, Iao Stream, Waihee River, and the Waiehu Stream. They are
the main source of freshwater for central Maui. Long before any of us were
around these waters flowed from the green mountains toward the ocean. The first
people to divert some of its waters were the Native Hawaiian farmers. Their
descendants used the streams to maintain their crops—early cases point out that
these diversionary ditches had been around since time immemorial.

Then came sugar. After the American
Civil War cut off America’s industrial cities from the Deep South’s sugar
beets, the demand for Hawaiian sugar went through the roof. Sugar plantations
and companies sprouted up throughout the islands, including the Wailuku Sugar
Company.

Sugar’s a thirsty crop. Companies
started diverting streams into irrigation ditches and reservoirs. By the 1890s,
all four streams had been diverted and the Wailuku Sugar Company had control of
the water.

Kalo famers took notice. Their crops dried up and
wilted away while central Maui turned green with acres of cane. They sued the
company. Sugar baron Claus Spreckles himself intervened (his eponymous ditch
still runs water through the heart of Wailuku town).

The farmers argued that the
diversion of the Iao Stream was unlawful. The Hawaii Supreme Court ruled in
favor of the farmers, but limited their use of the stream at night. The rest of
the time the stream could be used by the sugar companies. The farmers may have
won their case, but eventually everyone seemed to have forgotten. The sugar
companies took more and more water for their crops.

In the meantime, the Wailuku Sugar
Company got into a bitter dispute with the Hawaiian Commercial and Sugar
Company. HC&S wanted the water, but had the land. The Wailuku Sugar Company
had the water, but less land. They didn’t bury the hatchet and resolve their
dispute for more than twenty years, when the Wailuku Sugar Company agreed to
sell the water to HC&S. The agreement held out for almost a century.

The agreement held for decades even
after the Wailuku Sugar Company got out of the sugar business and started
selling water. HC&S weren’t the only folks buying water. The company
started selling water to the county and that brought about the rapid development
of South Maui. These days, if you are flushing a toilet or washing your face in
Kihei, you are most likely using water from Na Wai Eha. And that’s how it’s
been for most of our lives.

Most of us cannot remember a healthy and flowing
Waikapu Stream (take a look for yourself at the rocky and dusty streambed as it
passes beneath Honoapiilani Highway next to Waiko Road).

But the farmers struck back. About
ten years ago, the Wailuku Sugar Company’s company and HC&S requested their
use permits with the water commission when a group of farmers objected. They
argued that their traditional and customary rights as Native Hawaiian kalo
farmers had been violated, among other things. That started a long controversy.

While the agreement between the
Wailuku Sugar Company and HC&S stayed put, the law had changed
dramatically. In the 1970s, the Hawaii Constitution was amended. Waters were no
longer just any kind of property. It was held in the public trust for the
benefit of all peoples. Native Hawaiians also had their traditional gathering
and customary rights protected and recognized by constitutional provisions and
a series of cases from the Hawaii Supreme Court. Given these revolutionary changes,
the water commission was faced with new duties and tasks. The government now
had a big say in the way old companies handled water.

And so the farmers’ objection turned
into a twenty-three-day evidentiary hearing involving 77 witnesses and hundreds
of exhibits. The water commission required the companies—now the aptly re-named
the Wailuku Water Company and HC&S—to reduce amount of water it had been
diverting from two streams, but not the other two.

The case went up on appeal and the Hawaii Supreme
Court ruled for the farmers (again). It held that the commission did not adequately
consider the now-constitutionally protected rights of Native Hawaiian farmers
and their traditional and customary rights.

The court sent the case back to Maui
and after more negotiating, the case settled as we learned this week. The terms
of the settlement require the water company to restore water levels to the two
remaining streams: Waikapu and Iao. Seems like the deal is going to go through.
Kihei won’t lose all its water and maybe we can start to see water flowing
underneath the highway in Waikapu.

Monday, April 21, 2014

Our state has a list of official
symbols. “Hawaii Pono’i” is our state song. Our state bird is the nene goose.
We even have a state marine mammal—the Hawaiian monk seal. And my personal
favorite is the strange fact that black coral is our state “gemstone,” a true
first.

But we don’t have is a musical
instrument. The House tried to change that and introduced a bill the ukulele as
our official state instrument. Unfortunately, it’s sparked a strange debate. It
turned out that there were a number of critics and opponents.

The backers of the Hawaiian steel
guitar wanted recognition claimed that their instrument is more important for
Hawaii. The ukulele was just too worldly to be considered Hawaiian. After all,
they argued, the ukulele is played in every continent and in a variety of
different genres.

The steel guitar group also claimed that it was a
truly Hawaiian instrument since its style of play and roots developed here in
the islands. They pointed out that the ukulele is simply an immigrant of the
Portuguese while the steel guitar was invented by a Hawaiian. As one opponent
wrote, making the steel guitar the state instrument “is the PONO thing to do.”

After a strong showing of opponents,
the message and purpose behind the bill changed. Suddenly, the ukulele was no
longer a simple instrument that was associated with Hawaii. The bill became a
celebration of a world-renown instrument and that it has a special place here
in the islands.

When the bill moved over to the
Senate, things got even more bizarre. A committee reported that despite its
immense influence and popularity, the ukulele is not the only musical
instrument out there. If there is going to be a State musical instrument, it
should be one that is “indigenous to the people of Hawaii and important to the
native Hawaiian culture.” And with that, the bill was amended dramatically.

It was no longer a straightforward
pronouncement causing all sorts of controversy. Instead, there is going to be a
statewide campaign for schoolchildren to decide. There are, however, a few
ground rules. First, the contest would be set up in collaboration with the
Office of Hawaiian Affairs. Together, the kids and OHA would submit their
selections or recommendations to the Legislature in 2015. The instrument “shall
be indigenous to the people of the State,” it has to be “important to the
native Hawaiian culture,” and the kids can pick more than one. The Legislature
even provided a quick list of suggested instruments. At the top of the list was
the ukulele followed by the pahu drum, steel guitar, ipu, and the nose flute.

Seems like a strange controversy.
The ukulele, like the nene goose, may have ancestors and relatives elsewhere,
but can’t it be considered indigenous too?

The ukulele’s ancestors are indeed
Portuguese. When Portuguese colonized the world, they brought their music.
Specifically, they brought along a small, stringed instrument. The generic term
for the instrument is the cavaquinho, but there are several types. The
Portuguese settled all over the world and brought their cavaquinho with them.
In the Atlantic Islands, specifically Madeira, it became known as the machete
de braga or the braguinha.

The instruments headed west to
Brazil and found its place in samba music, which is the unique music of Brazil.
They went to Africa too. Cape Verde, the Portuguese colony, embraced the
instrument and like the Brazilian samba it is an essential part of the musical
genres there.

These were the instruments brought
to the islands. It adapted well. You could carry it to a field or strum it on
the docks. It was portable, fairly durable, and people liked its squeaky sound.
It was this high sound that lead to the name we are most familiar with: the
ukulele. Its adaptation also changed the instrument itself. Unlike the Portuguese
mini-guitars with steel, wire, or gut strings, the ukulele’s strings are soft
and made of nylon—which is much easier to play and makes it far more accessible
for people to pick and strum.

The early versions of the bill made
no distinction between the ukulele, the machete, or the cavaquinho. It did not
describe its metamorphosis. Instead, it described how the ukulele “was
originally from Portugal” and “popularized by Hawaiian royalty, plantation
workers, and musicians.” And maybe that was why it sparked a strange debate in
the first place.

Either way, not everyone is happy
with the legislation.

Last week, the Senate received
notice from the House that it disagreed with the amendments, and it this rate, it’s
unclear if the bill is going to make it to the end of term. But if it does, the
odd debate will continue to rage on.